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Judgment
Heard Mr. A.R. Agarwal, leaned counsel for the appellant and Mr. R.C. Paul, learnedcounsel for the Respondent/Insurance Company.
This appeal by the claimant is against the judgment and award dated 19.11.2015passed by the MACT, No. 1, Kamrup, Guwahati in MAC Case No.
620/2010.
Jakir Hussain, husband of the claimant No. 1 died, in a motor vehicle accident on23.02.2010, while he was travelling in the vehicle bearing
registration No. AS-12-E-2368 as handyman. The vehicle was owned by the respondent No. 2 and insured with the respondent No. 1, Bajaj Allianz
General Insurance Co. Ltd. The wife and children of Late Jakir Hussain filed an application praying for compensation and the learned MACT by the
impugned award granted a compensation of Rs. 10,94,000/-. Learned Tribunal directed the owner of the vehicle, the respondent No. 2, to satisfy the
award.
Aggrieved by the above judgment and award, the claimant filed this appeal.
Learned counsel Mr. A.R. Agarwal submits that the claimant proved by adducingevidence that the deceased was earning Rs. 4500/- per month at
the time of accident. However, the learned Tribunal ignoring the evidence adduced by the claimant, assumed the income as Rs. 4000/- and thereby
failed to award a just and fair compensation. Further contention of the learned counsel for the appellant is that the deceased was travelling in the
vehicle as a handyman and employee of the owner of the vehicle and the claimant also adduced evidence to that effect. However, learned Tribunal,
without properly appreciating the evidence brought on record, wrongly saddled the responsibility with the owner of the vehicle, the respondent No. 2 to
satisfy the award and such finding of the learned Tribunal was erroneous in view of the evidence that the deceased was employee of the owner
engaged in the vehicle. Learned counsel for the appellant therefore, urged for enhancement of the compensation and also for modification of the
direction regarding the liability to satisfy the award.
The claimant stated in his evidence on oath, that the deceased was working as ahandyman of the offending vehicle under the respondent No. 2 and
used to get a monthly salary of Rs. 4500/-. The claimant also proved a salary certificate purportedly issued by his employer and marked as Ext.6.
Learned Tribunal declined to accept the said salary certificate as it was not duly proved by it’s author.
Having considered the quantum of award on various heads granted by the learnedTribunal and also the future prospect added to the income, I am
of the view, that no enhancement in respect of income is necessary. Apparently, the learned Tribunal granted some excess amount on certain heads.
Even if the income would have been taken as Rs. 4500/-, the total award would not have been more, than what was awarded, had the Tribunal
reasonably awarded the compensation on conventional heads as per the guidelines of the Apex Court. Therefore, I am of the considered view that the
claimants do not deserve any further enhancement in the award.
So far the liability of the Insurance Company to satisfy the award is concerned, as perthe policy, admittedly, besides the driver, two more employees
were covered. The claimant stated in his evidence that the deceased was working as handyman and employee of the owner of the offending vehicle
and such evidence of the claimant has not been controverted by the Insurance Company. The owner/driver of the offending vehicle filed written
statement, wherein both of them admitted that the deceased was a handyman of the offending vehicle at the relevant time.
Learned counsel for the Insurance Company placing reliance on an FIR lodged by one Jamir Ali and proved as Ext.1 submits, that the deceased
was travelling in the vehicle as passenger/owner of the goods and as such the Insurance Company was not liable to satisfy the award for violation of
the policy condition. The Insurance Company also examined two witnesses being the investigator of the Insurance Company as DW-2 and another
official of the company as DW-1. Both of them deposed, that the deceased was travelling in the vehicle as owner of the goods along with others.
Admittedly, DW-1 and DW-2 were not eye witness and their oral testimony was based as the FIR (Ext.1). Admittedly, the FIR was not lodged by the
owner or driver of the vehicle and the person who lodged the FIR was also not examined in the instant case. Only a certified copy of the FIR was
proved by the investigator of the Insurance Company. On the other hand, the owner by filing written statement clearly admitted that the deceased was
a handyman and employee working in the offending vehicle. Apparently, the Insurance Company in their written statement stated that the vehicle was
a goods carrying vehicle having sitting capacity of three persons including the driver. It was also pleaded in the written statement that the vehicle was
carrying unauthorized occupants violating the condition of the policy and as such the Insurance Company was not liable to satisfy the award. In the
written statement, the Insurance Company never raised the plea, that the deceased was not the employee of the owner of the offending vehicle nor
there was any specific plea that the deceased was a gratuitous passenger. Whereas, admittedly the risk of two employees, besides the driver were
covered by the policy. The evidence adduced by the claimant that the deceased was a handyman and employee of the owner was not challenged in
cross examination and such uncontroverted evidence of the claimant was also supported by the owner/driver in the written statement. Such legal
evidence could not be brushed aside on the basis of an FIR, which was neither lodged by the owner or driver of the vehicle nor the claimant.
Moreover, the author of the FIR was also not examined to prove its contents.
In view of the above specific evidence on oath, which remained unimpeached, the plearaised by the Insurance Company that the deceased was
not an employee, rather he was a gratuitous passenger, cannot be accepted for the two reasons, firstly, no such plea was raised by the Insurance
Company in the written statement and secondly, no legal evidence could be brought on record, except the copy of the FIR, copy of which was also not
duly proved by examining the author or anyone having personal knowledge about the content of the FIR. Thus, the evidence brought on record clearly
established in the touchstone of preponderance of probability, that the deceased was travelling in the vehicle as a handyman and employee of the
vehicle. Admittedly, the risk of two employees besides the driver was covered under the policy. When the risk of three employees travelling in the
vehicle, including driver were covered under the policy and the Insurance Company sought to avoid the liability under the policy, on the ground of
violation of the condition of policy, burden was with Insurance Company to prove breach of any condition thereof. On the facts and circumstances as
indicated above, the Insurance Company cannot be held to have discharged its burden in order to avoid the liability to satisfy the award under the
policy. Learned Tribunal unfortunately failed to appreciate the legal evidence brought on record and solely relying the copy of an FIR, which was even
not duly proved by the author, came to a finding that the deceased was travelling in the vehicle as a gratuitous passenger and saddled the liability with
the owner of the vehicle to satisfy the award. Such finding of the learned Tribunal not being based on evidence on record is not sustainable.
From the totality of the evidence, it is abundantly clear that the deceased was ahandyman and employee of the offending vehicle and the
Insurance Company cannot avoid the liability as admittedly under the policy risk of two employees besides the driver was covered. In that vide of the
matter, there was no question for fixing the responsibility to satisfy the award with the owner of the vehicle. Accordingly, the direction given by the
learned Tribunal with regard to satisfaction of the award is modified to the effect that the award shall be satisfied by the Insurance Company.
With the above modification in the award, the appeal is partly allowed.
Send back the LCR.